LALIT SAO Vs. GULAM GILANI (KHALIFA

JUDGEMENT

(1.) THIS appeal has been preferred against the judgment and decree dated 30 -4 -1988 passed by the then Subordinate Judge, 1st Court, Dhanbad, in Title Suit No. 63 of 1984 by which the plaintiff -respondents suit has been decreed for declaration of title in respect of the suit land and also for confirmation of possession. Against this judgment and decree, previously, appeal was preferred choosing wrong forum before the District Judge, Dhanbad, being Title Appeal No. 36 of 1988 but as the jurisdiction was not there with the District Judge, the memorandum of appeal was returned and then the present appeal has been filed.

(2.) THE plaintiff -respondent filed the above -mentioned suit for declaration of title, confirmation of possession and alternatively for a decree of recovery of possession, if during the pendency of the suit it was found that the plaintiff was dispossessed from the suit premises. The tracing of title of the plaintiff was made in the following manner: The suit property along with others measuring 2 Bighas 12 Chhataks 7. Dhurs and 8 Sq. ft. by the then Manbhoom District Board in favour of one Mithu Mistry for an yearly rent of Rs. 20.00 per Bigha. The said settlement was made vide Ext. 1/A, a registered deed of settlement dated 23. -1 -1934 out of which Mithu Mistry settled Schedule A land measuring 12 Kathas appertaining to T.B. Plot No. 3, Survey Plot No. 266 Khata No. 165 to his grand mother Jaibun Nisha vide registered deed Ext. 4. According to the plaintiff, Jaibun Nisha constructed several constructions. Those were registered as Holding No. 432 to 436 under Ward No. 2 of Dhanbad Municipality. Then Jaibun Nisha gifted away Schedule A property to her second son Himayat Khan on 12 -9 -1955 fide Ext. 5. Himayat Khan on receipt of the gifted property started possessing the same. According to the further case of the plaintiff, Himayat Khan died leaving behind two sons, namely, Fahim Eqbal Khan and Omar Daraj Khan. The two brothers after the death of their father got their name mutated in place of their father and also in place of Jaibun Nisha and paid rent to the Municipality. Tax receipts had also been exhibited in the case. Then both the brothers, namely, Fahim Eqbal Khan and Omar Daraj Khan sold 13 Kathas 7 Chhataks of lands and construction thereof to Gurubachan Singh, Sardar Dilip Singh and Niranjan Singh who also came over the possession of their purchased property and also made several new constructions thereof, The balance of the lands and the houses thereof which was mentioned in Schedule B were sold by those two brothers in favour of the plaintiff by a registered deed of sale -dated 8 -11 -1983 which has been marked as Ext. 1 in the suit. The plaintiff after purchase mutated his name and started possessing the same on payment of tax to the Municipalities but the defendant started filing case after case against the plaintiff and were trying to dispossess him also. Because of such criminal cases including proceedings under Sec. 145 of the Code of Criminal Procedure were filed, the plaintiff found that his title is being clouted and, as such, he filed this suit for declaration of his right, title and inter est over Schedule -B properties together with prayer of confirmation of possession and alternatively for recovery of possession if found dispossessed during the pendency of the suit.

(3.) THE defendant filed written statement and contested the suit. He took various usual pleas such as non -maintainability of the suit, that there was no cause of action, etc. The defence case is that the property belonged to Jharia Raj Estate and it was never included in Manbhoom District Board and one Jagdish Sao got settlement of the property i. e. the whole of the Schedule -A land by a Hukumnama and he remained in possession of the property when he sold the same on 5 -51975 to the wife of the defendant, namely, Malti Devi z/de Ext. B.